The Center for Voting and Democracy is a non-partisan, non-profit
organization that promotes fair elections where every vote counts and
all voters are represented. On behalf of the Center, I would like
to submit the following document for consideration by the HAVA
Committee. It expands on the testimony I delivered at the San
Francisco hearing on May 8.

Executive Summary

We are at a point in history when at no cost to the voters, the state
of California can ensure that all jurisdictions acquiring new voting
equipment have the option to use all election methods, including ranked
ballots and cumulative voting, currently used in American public
elections. Requiring compatibility of new equipment with
alternative systems will not cost anything, nor will it reduce the
number of vendors bidding for contracts. On the other hand,
failing to require compatibility will effectively prevent jurisdictions
from adopting these systems until they acquire new voting equipment,
which may not occur for another 20 to 30 years.

Interest in alternative systems is growing rapidly in California, so it
would be a mistake not to give all jurisdictions the cost-free options
to use the electoral system that the jurisdictions judge to be best.

We wish to make the following points about voting equipment and compatibility with ranked ballots and cumulative voting:

1. Interest in alternative voting system such as instant
runoff voting and cumulative voting is growing in California and
nationwide because these systems address problems perceived with the
current systems.2. Incompatible voting equipment has created insurmountable obstacles to adopting alternative systems.3. Requiring compatibility with alternative systems will
not increase the cost of voting equipment contracts or reduce the
number of vendors bidding.4. Failing to require compatibility will preclude many
jurisdictions from even considering alternative systems during the next
20 to 30 years until new equipment is acquired.5. The HAVA Committee should recommend that all new voting
equipment be required to accommodate ranked ballot and cumulative
voting.

We expand on each of these points below and provide extensive documentation to support them.

Attachments

1. Federal Election Commission Voting System Standards 2. Evidence of ability of vendors to accommodate ranked ballots and cumulative voting 3. Excerpts from recent testimony prepared for the New York State HAVA Committee 4. Technical requirements of compatibility with ranked ballots and cumulative voting

Introduction

The Help American Vote Act, combined with the Voting Modernization Bond
Act (Proposition 41), creates an important opportunity to improve the
California electoral process.

In the wake of the Florida 2000 debacle, modernizing voting equipment
is the obvious first step to take. New voting equipment can
significantly improve the voting process by:

* Making it easier to cast a vote as the
voter intends through well designed, voter-friendly interfaces; * Preventing invalid votes or allowing voters to correct errors; * Improving access for people with
disabilities, non-native English speakers, people with low literacy,
and people with limited manual dexterity; and * Increasing public confidence in the integrity of the electoral process.

Many people and organizations are addressing these issues
admirably. We wish instead to focus on a different but equally
important question: ensuring compatibility of new voting
equipment with alternative voting systems.

1. Interest in alternative systems is growing because they address problems with the current systems

Interest in alternative electoral systems is growing in California and
the nation because theses systems address problems perceived in current
election methods.

Several California jurisdictions have passed legislation that allows or
implements instant runoff voting, several related pieces of state
legislation have been introduced, and many California jurisdictions
have expressed serious interest in alternative systems.

* San Francisco adopted instant runoff
voting to increase voter turnout and save the cost of December runoff
elections. The city of San Leandro and Santa Clara County have adopted
charter amendments that allow the use of instant runoff voting when
such technology is available. Oakland voters have passed two
charter amendments that allow instant runoff voting for special
elections to fill vacancies. * The Santa Rosa Charter Commission
recommended cumulative voting for city council to improve the
geographic and racial diversity of a city council that has elected no
racial minorities and only 2 people from west of highway 101 in the
last 40 years. * The Los Angeles city council directed
the city clerk to study instant runoff voting, which could save
millions of dollars by eliminating the need for municipal runoff
elections. * From San Diego to Humboldt County,
voters are asking boards of supervisors to consider instant runoff
voting because it elects majority winners in a single election,
shortens campaigns and elects supervisors when voter turnout is highest. * At the state level, a few years ago, the
Speaker of the Assembly, Bob Hertzberg, introduced a bill that would
use instant runoff voting for special elections for state legislature
and congress. Such a bill would save millions of dollars per year
by avoiding a runoff special election. * A bill in the current legislature, AB
1039, would give general law cities the same options that charter
cities have: to choose the election method that the city judges
best.

In the last few years, instant runoff voting advocates have spearheaded
successful campaigns to use instant runoff voting on college campuses
at Stanford, UC Davis and UC San Diego. UC Berkeley has used this
system for decades.

On the national level, our website, www.Fairvote.org, lists over 30
bills introduced in state and federal legislatures this year relating
to instant runoff voting, cumulative voting and voting equipment
compatibility. A bill to allow cumulative voting in local
elections in Illinois passed both houses and awaits the governor’s
signature. Ranked ballot elections have been used for over 50
years in the city of Cambridge (MA), and around 100 cities and school
districts are using cumulative and limited voting as a result of voting
rights lawsuits.

The 2000 presidential election, in which the winner won less than 50%
of the vote in Florida and third party candidates were charged with
“spoiling” the election, dramatically increased interest instant runoff
voting, with strong editorials from newspapers such as USA Today.

As a reflection of the growing interest in alternative voting systems,
many good government and civil rights groups have endorsed the
principle of compatibility and are testifying to this effect before
HAVA Committee across the country. A few examples include:

* Asian American Legal Defense and Education Fund * Brennan Center for Justice at New York University School of Law * CALPIRG * Center for Constitutional Rights * The Century Foundation, which convened the
National Commission on Federal Election Reform (Ford-Carter Commission) * The Constitution Project * Citizens for Legitimate Government * Committee for the Study of the American Electorate * Common Cause * Demos: A Network for Ideas & Action * Disabilities Network of New York City * Eastern Paralyzed Veterans Association * Lawyers' Committee for Civil Rights Under Law * National Asian Pacific American Legal Consortium * Puerto Rican Legal Defense and Education Fund * Texans for Public Justice

Members HAVA Committees in Ohio, Washington, New York, Vermont and
South Carolina have expressed interest in including compatibility with
alternative voting systems.

Support for instant runoff voting and cumulative voting is growing
across California and the nation, and many organizations are promoting
compatibility of voting equipment with these systems.2. Voting equipment and election administration often poses insurmountable obstacles to the adoption of new systems

In Santa Rosa, the registrar of voters testified that the county’s
equipment could not handle cumulative voting, so if the city wanted to
proceed, it would have had to acquire new equipment and run its own
elections. This turned out to be financially prohibitive, and the
city council voted not to place cumulative voting on the ballot.

In Alameda County, the registrar of voters stated that the county’s new
equipment could not handle a local instant runoff election consolidated
with a countywide election. This has prevented the cities of
Oakland, San Leandro and Berkeley from implementing instant runoff
voting.

In San Francisco, the voters adopted instant runoff voting by a large
margin. It is a legal mandate for this November’s election, but
the city and its voting equipment vendor still do not have an instant
runoff solution that runs on the city’s voting equipment. As a
result of difficulties in adapting the voting equipment, the city may
wind up spending hundreds of thousands of dollars to count ballots by
hand.

In New Mexico, legislative interest in instant runoff voting waned
after election officials reported that their equipment could not
accommodate instant runoff voting. Efforts in Washington and
Oregon have also been hampered by incompatible voting equipment as well
as local efforts in places including Vancouver (WA), Kalamazoo (MI) and
Cincinnati (OH).

3. Requiring compatibility with alternative systems will not
increase the cost of voting equipment contracts or reduce the number of
vendors bidding.

This assertion is based on multiple sources of information.

* Federal regulations that require vendors to state
whether or not their equipment is compatible with ranked ballots and
cumulative voting: Attachment 1 is an excerpt from the Federal
Election Commission’s Voting System Standards released in April
2002. These standards recognize that many electoral arrangements
are used in the United States, and they require vendors to state
whether or not their equipment can handle particular options and if so,
how it handles them.

The options include cumulative voting and ranked
order voting. These regulations obviously give vendors the
incentive to respond in the affirmative, to avoid losing business to a
competitor who offers more options. The federal certification
process includes testing all options that vendors provide, which means
that vendors need to develop these options and have them tested by
Independent Testing Authorities before they even apply for California
certification.

* Requests for Proposals (RFPs) in Santa Clara
County and Mendocino County that require ranked ballot
compatibility: Both Mendocino and Santa Clara Counties included
ranked ballot compatibility in their Requests for Proposals. All
of the major vendors are pursuing or did pursue the contracts. In
Santa Clara County, the three largest vendors all conducted pilot
projects and two of them demonstrated their ranked ballot interface.

* Statement by Santa Clara County Registrar Jesse
Durazo after completing a competitive bidding process to acquire voting
equipment that can handle instant runoff voting: At the May 8th
hearing, I asked Santa Clara County Registrar Jesse Durazo whether
including the ranked ballot requirement increased the price of the
voting equipment or reduced the number of companies bidding on the
project, he unhesitatingly responded, “No.” When I asked him
whether including a ranked ballot requirement for all new equipment in
California would increase the cost or reduce the number of vendors, the
answer was the same.

* Vendors’ bids on contracts in foreign countries
that use ranked ballots: In addition to bidding on RFPs in
Mendocino County and Santa Clara County, several of these vendors have
bid on contracts in Ireland, which uses ranked ballot voting for its
elections.

* Survey responses from vendors and conversations
with them about their ability to handle ranked ballots and cumulative
voting: Many of the vendors have responded to a survey by the
Center for Voting and Democracy and stated that their equipment can
handle ranked ballot voting and cumulative voting, and in personal
conversations with me, all of the major vendors have told me that if a
jurisdiction wants ranked ballot compatibility, the vendor can and will
provide it.

* Vendors’ willingness to accommodate their
customers’ demands: Finally, a bidding process with multiple
vendors competing gives all competitors incentive to provide maximum
options at minimum cost. In Santa Clara County, the county
decided to conduct a pilot project with voter-verifiable paper
receipts. All three finalists stated a willingness to add a
mechanism for paper receipts at no additional cost to the county.
The evidence I have presented suggests that the same phenomenon would
occur with ranked ballot compatibility: vendors will compete with
each other to provide the option at no additional cost.

4. Failing to require compatibility will preclude many
jurisdictions from even considering alternative systems during the next
20 to 30 years until new equipment is acquired.

If compatibility with ranked ballots and cumulative voting is not
required in new equipment, the winner of the contract will not have any
incentive to include this feature. If in the future, the county
or a city wishes to use instant runoff voting or cumulative voting, the
incumbent vendor, not facing any competitive pressure, can and probably
would raise the price dramatically to adapt their equipment.

In San Francisco, before the voters passed instant runoff voting, the
vendor asserted that they could handle instant runoff voting at a very
modest cost. After the voters changed the charter, the price
increased dramatically, and it has taken much longer than anyone
expected to prepare the voting equipment. It’s possible that the
vendor will be unable to deliver a technological solution in time for
the November election.

According to election officials in another state, after acquiring a
statewide touchscreen system, some leaders became interested in using
instant runoff voting in a statewide election. The incumbent
vendor assured the customer that they could do it but said that it
might cost $1 million and take 6 to 12 months. State officials
privately told us that it would have been much easier to include ranked
ballot compatibility from the beginning of the RFP process.

If you wait, the cost of using these systems goes up and generally
becomes prohibitively expensive. That would mean jurisdictions
may have to wait until the next generation of voting equipment is
acquired, which might take another 20 to 30 years.5. The HAVA Committee should recommend that all new voting
equipment be required to accommodate ranked ballot and cumulative
voting.

This simply requires that California only acquire new voting equipment
for which the vendor has responded in the affirmative to the Voting
System Standards, Volume 1, Section 2.2.8.2. m. and n.

Conclusion

We are facing a great opportunity to improve California
elections. Please make the most of this opportunity by requiring
that all new voting equipment be compatible with ranked ballots and
cumulative voting.

If I can provide any more information about these issues, please don’t hesitate to contact:

1. Federal Election Commission Voting System Standards 2. Evidence of ability of vendors to accommodate ranked ballots and cumulative voting 3. Excerpts from recent testimony prepared for the New York State HAVA Committee 4. Technical requirements of compatibility with ranked ballots and cumulative voting

Attachment 1

Federal Election Commission Voting System Standards

Adopted April 30, 2002

http://www.fec.gov/pages/vssfinal/vss.html

Volume I

2.2.8.2 Voting Variations

There are significant variations among the election laws of the 50
states with respect to permissible ballot contents, voting options, and
the associated ballot counting logic. The TDP accompanying the system
shall specifically identify which of the following items can and cannot
be supported by the system, as well as how the system can implement the
items supported:

Finalists for the Santa Clara County contract, which requires IRV-ready equipment when the county requests it

* ES&S * Sequoia * Diebold

Statement by a country registrar who acquired compatible equipment

The Santa Clara County Registrar, Jesse Durazo, stated that including
ranked ballot compatibility did not increase the cost of their contract
nor did it reduce the number of vendors who submitted bids.

Attachment 3

Excerpts from recent testimony prepared for the New York State HAVA Committee

The Century Foundation

Abrams, Robert, Fried Arthur et al. The Help America Vote
Act: Impact and Potential for New York. The Century Foundation,
www.tcf.org.

Excerpt from ages 44-45:

“In addition to meeting these HAVA requirements, the new voting
equipment should have software that can accommodate instant runoff
voting and cumulative voting, in case the Legislature votes to use this
method in some or all elections. Instant runoff voting is a
ranked-choice voting system that allows voters to rank candidates in
order of choice, ensuring a winning candidate will receive an absolute
majority of votes rather than a simple plurality. Legislation to
conduct primaries and local elections through instant run-off voting
has been introduced in the New York State Legislature (A4481, S4683 and
A4482). In cumulative voting, voters cast as many votes as there are
seats and can put multiple votes for one or more candidates.”

New York State Citizens’ Coalition on HAVA Implementation

Testimony of The New York State Citizens’ Coalition on HAVA Implementation

April 4, 2003

The New York State Citizens’ Coalition on HAVA Implementation is an ad
hoc and diverse coalition of Good Government, Voting Rights, Racial
Justice, Disability Rights, and Language Rights organizations and
academics who are concerned about the way in which New York implements
the Help America Vote Act (HAVA.) We are committed to protecting voting
rights and improving the electoral process in New York. The Coalition
includes the Asian American Legal Defense & Education Fund (AALDF),
the Brennan Center for Justice, Citizens Union, Common Cause/NY, DEMOS,
Disabilities Network of New York City, Eastern Paralyzed Veterans
Association, New York Immigration Coalition, New York Lawyers for the
Public Interest, the New York Public Interest Research Group, (NYPIRG),
People for the American Way, and several other organizations.

Excerpt from page 7:

“New machines should be versatile enough to meet New York’s diverse
needs. New machines should be ‘system ready’ to handle a
wide-range of elections like Instant Run-Off Voting and Cumulative
Voting.”

Attachment 4

Technical requirements of compatibility with ranked ballots and cumulative voting

The simplest way to ensure compatibility is to require that vendors
reply in the affirmative to the relevant voting system standards and be
prepared to provide the solution upon the demand of the election
officials.

There are three technical components of ranked ballot voting.
First, voters rank candidates in order of choice by indicating their
1st, 2nd choice, 3rd choice and so on. Second, the voting
equipment either prevents voters from casting an invalid vote
(overvote, skipped ranking, listing the same candidate more than once)
or notifies voters of errors and allows the voter to correct the
errors. Third, the voting equipment stores ballot images of each
voter’s rankings rather than sub-totals for each ballot position.
The output of the voting equipment is a data file that contains an
anonymous record of each voter’s 1st choice, 2nd choice and so on.

For cumulative voting, the ballot must allow voters to cast a number of
votes up to the number of seats and to give 1 or more votes to 1 or
more candidates. The voting equipment must either prevent voters
from casting an invalid vote (overvote) or notify voters of errors and
allows the voter to correct the errors. The voting equipment has
to keep track of the total number of votes received by each candidate.

In Detroit, there have been three mayors in the past two years and the current one has come under scrutiny. Perhaps a system like instant runoff voting will help bring political stability to motor city.